ALEX AVILA et al., Plaintiffs and Respondents, v. SOUTHERN CALIFORNIA SPECIALTY CARE, INC., et al., Defendants and Appellants.
G054269
(Super. Ct. No. 30-2016-00843634)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 2/26/18
Nathan R. Scott, Judge.
Appeal from an order of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed.
Giovanniello Law Group, Alexander F. Giovanniello, Karen A. Bocker, Danielle M. VandenBos and Thomas C. Swann for Defendants and Appellants.
Valentine Law Group, Kimberly A. Valentine, Jennifer L. Turner and Joseph F. Fighera for Plaintiffs and Respondents.
* * *
Southern California Specialty Care, dba Kindred Hospital – Santa Ana and Kindred Healthcare Operating, Inc. (Kindred or defendants) appeal from the trial court’s
I
FACTS
In 2007, Antonio executed California’s statutory power of attorney form, naming his son, Alex, as his agent. In March 2015, Antonio, age 87 at the time, was transferred from another facility to Kindred, a long-term acute care hospital, suffering from various conditions, including sepsis and chronic renal failure.
The next day, after Antonio had begun receiving care, Alex was presented with a stack of documents, including a document entitled “Voluntary Alternative Dispute Resolution (ADR) Agreement” (the agreement). Alex signed the agreement on Antonio’s behalf.
The agreement provided for arbitration after mediation, with “submission to arbitration as provided by California law.” It also refers to
On the signature page, immediately prior to the signature area, there is a statement pursuant to
According to the complaint, Antonio died within five days of admission as a result of Kindred’s neglect. A dislodged feeding tube began infusing into the throat and/or esophagus instead of the stomach, and Antonio’s impaired gag reflex was unable to clear his lungs. He aspirated, resulting in cardiopulmonary arrest and rapid decline until his death.
In March 2016, the initial complaint was filed on behalf of Antonio, “by and through his successor-in-interest” Alex, and individually on Alex’s behalf. The first cause of action for “negligence/willful misconduct” and the second cause of action for elder abuse and neglect was on behalf of both plaintiffs. A third and final cause of action for wrongful death was filed on Alex’s behalf only. In May, defendants filed an answer, demand for jury trial, and notice of posting of juror fees. They also sent a letter to plaintiffs’ counsel demanding dismissal of the lawsuit and proceeding to arbitration. Plaintiffs declined.
In response, plaintiffs argued the agreement was unconscionable, and the defendants had waived their right to arbitrate by their unreasonable delay. They further argued that Alex was not a signatory to the agreement, which was unenforceable against him, and the presence of his nonarbitrable wrongful death claim created the risk of inconsistent rulings. Accordingly, they requested the trial court, in an exercise of discretion, to retain jurisdiction. Defendants filed a reply in due course.
The trial court initially issued a tentative decision granting defendants’ motion, but after hearing argument, took the matter under submission. The court’s final order denied the motion, concluding defendants had failed to show a valid arbitration agreement with respect to Alex. The court exercised its discretion under
Defendants now appeal.
DISCUSSION
Standard of Review
“‘“There is no uniform standard of review for evaluating an order denying a motion to compel arbitration. [Citation.] If the court’s order is based on a decision of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed. [Citations.]”’” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 686.) The issue of whether a third party is bound by an arbitration agreement is a question of law. (Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 680 (Daniels).)
“[T]he ultimate determination whether to stay or deny arbitration based on the possibility of conflicting rulings on common questions of law or fact is reviewed for an abuse of discretion. [Citation.] ‘The court’s discretion under
The FAA, CAA, or Both
Defendants argue the FAA applies to the agreement; plaintiffs argue the California Arbitration Act (
The FAA, which includes both procedural and substantive provisions, governs agreements involving interstate commerce. The agreement does not mention the FAA at all, although it does mention California law several times, including the statement in the opening article, that disputes “will be determined by submission to arbitration as provided by California law.” The agreement also provides that
The procedural aspects4 of the FAA do not apply in state court absent an express provision in the arbitration agreement. (See Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 922 [even where agreement specifies FAA governs any disputes, CAA governs procedures]; Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 388-390; see Volt Info. Sciences, Inc. v. Bd. of Trustees (1989) 489 U.S. 468, 476-477, fn. 6; Los Angeles Unified School Dist. v. Safety National Casualty Corp. (2017) 13 Cal.App.5th 471, 479-480.)
As noted above, the agreement here does not even mention the FAA, much less expressly adopt its procedural rules. Accordingly, the FAA’s procedural rules do not apply here. Any state law procedural provisions regarding arbitration are valid unless they defeat the rights granted by the FAA to equal enforcement of arbitration clauses. Defendants argue
MICRA or Not MICRA
A key issue in this case is whether Alex is bound by the agreement. Defendants concede that Alex did not sign the agreement in his individual capacity, but as Antonio’s agent. But they argue that nonetheless, the wrongful death claim brought in his personal capacity is subject to arbitration pursuant to
Carving out an exception to the general rule that arbitration agreements must be the subject of consent rather than compulsion, in Ruiz v. Podolsky (2010) 50 Cal.4th 838, 849 (Ruiz), the California Supreme Court held that
In Daniels, the plaintiff sued a residential care facility (as distinguished from a health care facility, as here) in her personal capacity. She alleged causes of action for wrongful death, elder abuse, and related claims. She alleged the facility had failed to properly care for her 92-year-old mother and caused her mother’s death. The defendant unsuccessfully petitioned to compel arbitration under a clause in a residency agreement the plaintiff signed on her mother’s behalf pursuant to a durable general power of attorney. (Daniels, supra, 212 Cal.App.4th at p. 678.) The arbitration clause at issue, like the one here, purported to bind the patient’s heirs. (Ibid.)
The Court of Appeal affirmed, rejecting the argument that Ruiz required arbitration of the independent wrongful death claim. “Ruiz is based squarely on
The complaint includes allegations that could be categorized as professional negligence as well as elder abuse. There is at least some overlap between the two. But the complaint was pleaded as one for “negligence/willful misconduct,” elder abuse and neglect under the Act, and wrongful death. The complaint alleges a “conscious and continued pattern of withholding the most basic care and services,” which included a lack of monitoring, supervision, assistance, and other adequate care and services. It alleges the lack of availability of a physician, failure to provide properly trained staff and nursing, among other things.
“Neglect includes the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88.) Under the Act, neglect “‘refers not to the substandard performance of medical services but, rather, to the “failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” [Citation.] Thus, the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.’” (Id. at p. 89.)
Plaintiffs, within the limits of established law, are essentially free to plead their case as they choose. They chose to plead a cause of action under the Act, and they did so successfully. The fact that they could have also pleaded a claim for medical malpractice, had they wished to do so, is irrelevant. Accordingly, we conclude the
Applicability of Agreement to Alex
Having determined that
In California, a wrongful death claim is an independent claim. “Unlike some jurisdictions wherein wrongful death actions are derivative,
In Daniels, the court rejected any claim that signing an arbitration agreement as agent gave the agent’s consent to arbitrate independent claims, including a claim for wrongful death. “Because Daniels signed the residency agreement solely as agent and not in her personal capacity, there is no basis to infer that Daniels agreed to
Daniels relied on Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469 (Fitzhugh). In that case, the court rejected the defense contention that signing an arbitration agreement as an agent also constituted an agreement to arbitrate in a personal capacity. In that case, Ruth Fitzhugh was admitted to a health care facility. Her husband George Fitzhugh signed two arbitration agreements as her “‘Legal Representative/Agent.’” (Id. at pp. 471-472.) Each of the agreements stated: “‘This arbitration agreement binds the parties hereto, including the heirs, representatives, executors, administrators, successors, and assigns of such parties.’” (Id. at p. 472.) After Ruth died, George sued the facility for wrongful death (among other causes of action). (Id. at pp. 471-472.)
The court held that George was not required to arbitrate his wrongful death cause of action. “It is irrelevant to the wrongful death cause of action whether George Fitzhugh may have signed the arbitration agreements as the decedent’s ‘legal representative/agent.’ Because there is no evidence that George Fitzhugh signed the arbitration agreements in his personal capacity . . . there is no basis to infer that [he] waived [his] personal right to jury trial on the wrongful death claim. [Citations.]” (Fitzhugh, supra, 150 Cal.App.4th at p. 474, fn. omitted.)
Such is the case here. There is simply no evidence that when Alex signed the agreement as his father’s agent, he had any intent to waive his right to a jury trial for
Exercise of Discretion to Stay
The trial court ruled: “Even if decedent and his heirs are bound by the arbitration agreement for survivor claims, the court exercises its discretion to ‘refuse to enforce the arbitration agreement.’ [Citation.] Compelling arbitration of the survivor claims would unreasonably risk ‘conflicting rulings on a common issue of law or fact.’ [Citations.]” As noted above, we review this issue for abuse of discretion. (Acquire, supra, 213 Cal.App.4th at p. 971; Daniels, supra, 212 Cal.App.4th at p. 680.)
Defendants first argue, once again, that
As to the exercise of the court’s discretion,
Here, all three factors were met. Both parties are litigants in both the survivorship and wrongful death claims. Those claims involve the same set of operative facts. If the survivorship claims were arbitrated while the wrongful death claim was litigated, there is a strong possibility of inconsistent rulings. The courts in Daniels, supra, 212 Cal.App.4th at page 680, and Fitzhugh, supra, 150 Cal.App.4th at page 476, each reached the same conclusion. We find, accordingly, no abuse of the court’s discretion.
Finally, defendants argue “public policy” supports sending the case to arbitration. While the law favors arbitration as an expeditious and cost-effective way to resolve disputes, consent of the parties is required. (See Volt, supra, 489 U.S. at p. 479.) “[W]e are not at liberty to ignore the well-established California law that ‘[t]he party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement.’ [Citation.] Even though it is true—as defendants point out—that ‘arbitration has become an accepted and favored method of resolving disputes . . .’ [citations], it is well settled that an arbitration agreement requires consent. Simply put, ‘“[t]he strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he [or she] has not agreed to resolve by arbitration.”’ [Citations.]” (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1178.) We therefore reject defendants’ tacit argument that “public policy” may override the lack of consent to arbitration.
III
DISPOSITION
The order denying defendants’ motion to compel arbitration is affirmed. Plaintiffs are entitled to their costs on appeal.
MOORE, ACTING P. J.
WE CONCUR:
ARONSON, J.
THOMPSON, J.